CBS, INC. v. FEDERAL COMMUNICATIONS COMMISSION ET AL.
No. 80-207
Supreme Court of the United States
Argued March 3, 1981—Decided July 1, 1981
453 U.S. 367
Floyd Abrams argued the cause for petitioners in all cases. On the briefs in No. 80-207 were J. Roger Wollenberg, Timothy B. Dyk, Ralph E. Goldberg, and Joseph DeFranco. On the briefs in No. 80-213 were James A. McKenna, Jr., Thomas N. Frohock, Carl R. Ramey, and Robert J. Kaufman. With Mr. Abrams on the briefs in No. 80-214 were Dean Ringel, Patricia A. Pickrel, Corydon B. Dunham, and Howard Monderer. Erwin G. Krasnow filed a brief for the National Association of Broadcasters, respondent under this Court‘s Rule 19.6, urging reversal.
Stephen M. Shapiro argued the cause for the federal respondents in all cases. With him on the brief were Solicitor General McCree, Deputy Solicitor General Claiborne, Robert R. Bruce, and C. Grey Pash, Jr.†
†Heidi P. Sanchez and Andrew Jay Schwartzman filed a brief for the National Citizens Committee for Broadcasting et al. as amici curiae urging affirmance.
We granted certiorari to consider whether the Federal Communications Commission properly construed
I
A
On October 11, 1979, Gerald M. Rafshoon, President of the Carter-Mondale Presidential Committee, requested each of the three major television networks to provide time for a 30-minute program between 8 p. m. and 10:30 p. m. on either the 4th, 5th, 6th, or 7th of December 1979.1 The Committee
The networks declined to make the requested time available. Petitioner CBS emphasized the large number of candidates for the Republican and Democratic Presidential nominations and the potential disruption of regular programming to accommodate requests for equal treatment, but it offered to sell two 5-minute segments to the Committee, one at 10:55 p. m. on December 8 and one in the daytime.2 Peti-
On October 29, 1979, the Carter-Mondale Presidential Committee filed a complaint with the Federal Communications Commission, charging that the networks had violated
“The Commission may revoke any station license or construction permit—
. . . . .
“(7) for willful or repeated failure to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of a broadcasting station by a legally qualified candidate for Federal elective office on behalf of his candidacy.”
At an open meeting on November 20, 1979, the Commission, by a 4-to-3 vote, ruled that the networks had violated
Petitioners sought reconsideration of the FCC‘s decision. The reconsideration petitions were denied by the same 4-to-3 vote, and, on November 28, 1979, the Commission issued a second memorandum opinion and order clarifying its previous decision. It rejected petitioners’ arguments that
The networks, pursuant to
Following the seizure of American Embassy personnel in Iran, the Carter-Mondale Presidential Committee decided to postpone to early January 1980 the 30-minute program it had planned to broadcast during the period of December 4–7, 1979. However, believing that some time was needed in conjunction with the President‘s announcement of his candidacy, the Committee sought and subsequently obtained from CBS the purchase of five minutes of time on December 4. In addition, the Committee sought and obtained from ABC and NBC offers of time for a 30-minute program in January, and the ABC offer eventually was accepted. Throughout these negotiations, the Committee and the networks reserved all rights relating to the appeal.
B
The Court of Appeals affirmed the Commission‘s orders, 202 U. S. App. D. C. 369, 629 F. 2d 1 (1980), holding that the statute created a new, affirmative right of access to the broadcast media for individual candidates for federal elective office. As to the implementation of
Applying these principles, the Court of Appeals sustained the Commission‘s determination that the Presidential campaign had begun by November 1979, and, accordingly, the obligations imposed by
Finally, the Court of Appeals rejected petitioners’ First Amendment challenge to
II
We consider first the scope of
A
The Federal Election Campaign Act of 1971, which Congress enacted in 1972, included as one of its four Titles the Campaign Communications Reform Act (Title I). Title I contained the provision that was codified as
We have often observed that the starting point in every case involving statutory construction is “the language employed by Congress.” Reiter v. Sonotone Corp., 442 U. S. 330, 337 (1979). In unambiguous language,
“for willful or repeated failure to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of a broadcasting station by a legally qualified candidate for Federal elective office on behalf of his candidacy.”
It is clear on the face of the statute that Congress did not prescribe merely a general duty to afford some measure of political programming, which the public interest obligation
The command of
“Prior to the enactment of the [statute], we recognized political broadcasting as one of the fourteen basic elements necessary to meet the public interest, needs and desires of the community. No legally qualified candidate had, at that time, a specific right of access to a broadcasting station. However, stations were required to make reasonable, good faith judgments about the importance and interest of particular races. Based upon those judgments, licensees were to ‘determine how much time should be made available for candidates in each race on either a paid or unpaid basis.’ There was no requirement that such time be made available for specific ‘uses’ of a broadcasting station to which Section 315 ‘equal opportunities’ would be applicable.” (Footnotes omitted.) Report and Order: Commission Policy in Enforcing Section 312 (a)(7) of the Communications Act, 68 F. C. C. 2d 1079, 1087–1088 (1978) (1978 Report and Order).
Under the pre-1971 public interest requirement, compliance with which was necessary to assure license renewal, some time
B
The legislative history confirms that
“[The amendment] provide[s] that willful or repeated failure by a broadcast licensee to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of his station‘s facilities by a legally [sic] qualified candidate for Federal elective office on behalf of his candidacy shall be grounds for adverse action by the FCC.
“The duty of broadcast licensees generally to permit the use of their facilities by legally qualified candidates for these public offices is inherent in the requirement that licensees serve the needs and interests of the [communities] of license. The Federal Communications Commission has recognized this obligation . . . .” Id., at 34.
While acknowledging the “general” public interest requirement, the Report treated it separately from the specific obligation prescribed by the proposed legislation. See also id., at 28.
As initially reported in the Senate,
“[B]roadcasters [are required] to permit any legally qualified candidate [for federal office] to purchase a ‘reasonable amount of time’ for his campaign advertising. Any broadcaster found in willful or repeated violation of this requirement could lose his license and be
thrown out of business, his total record of public service notwithstanding. . . . . .
“[U]nder this provision, a broadcaster, whose license is obtained and retained on basis of performance in the public interest, may be charged with being unreasonable and, therefore, fall subject to revocation of his license.” 118 Cong. Rec. 326 (1972) (remarks of Rep. Keith).
Such emphasis on the thrust of the statute would seem unnecessary if it did nothing more than reiterate the public interest standard.
Perhaps the most telling evidence of congressional intent, however, is the contemporaneous amendment of
Thus, the legislative history supports the plain meaning of the statute that individual candidates for federal elective office have a right of reasonable access to the use of stations for paid political broadcasts on behalf of their candidacies,8 without reference to whether an opponent has secured time.
C
We have held that “the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong, especially when Congress has refused to alter the administrative construction.” Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 381 (1969) (footnotes omitted). Accord Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94, 121 (1973). Such deference “is particularly appropriate where, as here, an agency‘s interpretation involves issues of considerable public controversy, and Congress has not acted to correct any misperception of its statutory objectives.” United States v. Rutherford, 442 U. S. 544, 554 (1979).
Since the enactment of
“When Congress enacted Section 312 (a)(7), it imposed an additional obligation on the general mandate to operate in the public interest. Licensees were specifically required to afford reasonable access to or to permit the purchase of reasonable amounts of broadcast time for the ‘use’ of Federal candidates.
“We see no merit to the contention that Section 312 (a)(7) was meant merely as a codification of the Commission‘s already existing policy concerning political broadcasts. There was no reason to commit that policy to statute since it was already being enforced by the Commission. . . .” 68 F. C. C. 2d, at 1088.
See also 1978 Primer, 69 F. C. C. 2d, at 2286–2289. The Commission has adhered to this view of the statute in its rulings on individual inquiries and complaints. See, e. g., The Labor Party, 67 F. C. C. 2d 589, 590 (1978); Ken Bauder, 62 F. C. C. 2d 849 (Broadcast Bureau 1976); Don C. Smith, 49 F. C. C. 2d 678, 679 (Broadcast Bureau 1974); Summa Corp., 43 F. C. C. 2d 602, 603–605 (1973); Robert H. Hauslein, 39 F. C. C. 2d 1064, 1065 (Broadcast Bureau 1973).
Congress has been made aware of the Commission‘s interpretation of
“We didn‘t draw the provision any differently than we did because when you begin to legislate on guidelines, and on standards, and on criteria, you know what you run up against. I think what we did was reasonable enough, and I think what you did was reasonable enough as well.
. . . . .
“I would suppose that in cases of that kind, you would get some complaints. But, frankly, I think it has worked out pretty well.” Id., at 137–138.
The issue was joined when CBS Vice Chairman Frank Stanton also testified at the hearings and objected to the fact that
The Commission‘s repeated construction of
D
In support of their narrow reading of
However, “the language of an opinion is not always to be parsed as though we were dealing with language of a statute.” Reiter v. Sonotone Corp., 442 U. S., at 341. The qualified observation that
III
A
Although Congress provided in
Broadcasters are free to deny the sale of air time prior to
387 the commencement of a campaign, but once a campaign has begun, they must give reasonable and good-faith attention to access requests from “legally qualified” candidates11 for fed- eral elective office. Such requests must be considered on an individualized basis, and broadcasters are required to tailor their responses to accommodate, as much as reasonably pos- sible, a candidate‘s stated purposes in seeking air time. In responding to access requests, however, broadcasters may also give weight to such factors as the amount of time previously sold to the candidate, the disruptive impact on regular pro- gramming, and the likelihood of requests for time by rival candidates under the equal opportunities provision of(1)
The Commission has concluded that, as a threshold matter,
it will independently determine whether a campaign has be-
gun and the obligations imposed by
However, petitioners fail to recognize that the Commis- sion does not set the starting date for a campaign. Rather, on review of a complaint alleging denial of “reasonable access,” it examines objective evidence to find whether the campaign has already commenced, “taking into account the position of the candidate and the networks as well as other factors.” Id., at 665 (emphasis added). As the Court of Appeals noted, the “determination of when the statutory obligations attach does not control the electoral process, . . . the determination is controlled by the process.” 202 U. S. App. D. C., at 384, 629 F. 2d, at 16. Such a decision is not, and cannot be, purely one of editorial judgment.
Moreover, the Commission‘s approach serves to narrow
Petitioners also challenge the Commission‘s requirement that broadcasters evaluate and respond to access requests on an individualized basis. In petitioners’ view, the agency has attached inordinate significance to candidates’ needs, thereby precluding fair assessment of broadcasters’ concerns and pro- hibiting the adoption of uniform policies regarding requests for access.
While admonishing broadcasters not to “‘second guess’ the ‘political’ wisdom or . . . effectiveness” of the particular for- mat sought by a candidate, the Commission has clearly ac- knowledged that “the candidate‘s . . . request is by no means conclusive of the question of how much time, if any, is appro- priate. Other . . . factors, such as the disruption or dis- placement of regular programming (particularly as affected by a reasonable probability of requests by other candidates), must be considered in the balance.” 74 F. C. C. 2d, at 667- 668. Thus, the Commission mandates careful consideration of, not blind assent to, candidates’ desires for air time.
Petitioners are correct that the Commission‘s standards
proscribe blanket rules concerning access; each request must
be examined on its own merits. While the adoption of uni-
form policies might well prove more convenient for broad-
casters, such an approach would allow personal campaign
strategies and the exigencies of the political process to be
ignored. A broadcaster‘s “evenhanded” response of granting
only time spots of a fixed duration to candidates may be “un-
reasonable” where a particular candidate desires less time for
an advertisement or a longer format to discuss substantive
issues. In essence, petitioners seek the unilateral right to de-
termine in advance how much time to afford all candidates.
Yet
The Federal Communications Commission is the experienced
administrative agency long entrusted by Congress with the
regulation of broadcasting, and the Commission is responsible
for implementing and enforcing
B
There can be no doubt that the Commission‘s standards have achieved greater clarity as a result of the orders in these cases.13 However laudable that may be, it raises the question
In the 1978 Report and Order, the Commission stated that
it could not establish a precise point at which
“For instance, a presidential campaign may be in full swing almost a year before an election; other campaigns may be limited to a short concentrated period. . . . [W]e believe that, generally, a licensee would be unrea- sonable if it refused to afford access to Federal candidates at least during those time periods [when the ‘lowest unit charge’ provision of
§ 315 applied]. Moreover, it may be required to afford reasonable access before these pe- riods; however, the determination of whether ‘reasonable access’ must be afforded before these periods for particu- lar races must be made in each case under all the facts and circumstances present. . . . [W]e expect licensees to afford access at a reasonable time prior to a conven- tion or caucus. We will review a licensee‘s decisions in
this area on a case-by-case basis.” 68 F. C. C. 2d, at 1091-1092 (emphasis added).
In Anthony R. Martin-Trigona, 67 F. C. C. 2d 743 (1978),
the Commission observed: “[T]he licensee, and ultimately the
Commission, must look to the circumstances of each particu-
lar case to determine when it is reasonable for a candidate‘s
access to begin . . . .” Id., at 746, n. 4 (emphasis added).
Further, the 1978 Report and Order made clear that “Federal
candidates are the intended beneficiary of
“[A]n arbitrary ‘blanket’ ban on the use by a candidate of a particular class or length of time in a particular period cannot be considered reasonable. A Federal can- didate‘s decisions as to the best method of pursuing his or her media campaign should be honored as much as possible under the ‘reasonable’ limits imposed by the licensee.” Id., at 1090.
Here, the Carter-Mondale Presidential Committee sought broadcast time approximately 11 months before the 1980 Presidential election and 8 months before the Democratic National Convention. In determining that a national cam- paign was underway at that point, the Commission stressed: (a) that 10 candidates formally had announced their inten- tion to seek the Republican nomination, and 2 candidates had done so for the Democratic nomination; (b) that various states had started the delegate selection process; (c) that can- didates were traveling across the country making speeches and attempting to raise funds; (d) that national campaign organizations were established and operating; (e) that the Iowa caucus would be held the following month; (f) that public officials and private groups were making endorse- ments; and (g) that the national print media had given cam-
Nevertheless, petitioners ABC and NBC refused to sell the Carter-Mondale Presidential Committee any time in Decem- ber 1979 on the ground that it was “too early in the political season.” App. 41-43, 52-74; nn. 3 and 4, supra. These peti- tioners made no counteroffers, but adopted “blanket” policies refusing access despite the admonition against such an ap- proach in the 1978 Report and Order. Cf. Donald W. Riegle, 59 F. C. C. 2d 1314 (1976); WALB-TV, Inc., 59 F. C. C. 2d 1246 (1976). Likewise, petitioner CBS, while not barring ac- cess completely, had an across-the-board policy of selling only 5-minute spots to all candidates, notwithstanding the Com- mission‘s directive in the 1978 Report and Order that broad- casters consider “a candidate‘s desires as to the method of conducting his or her media campaign.” 68 F. C. C. 2d, at 1089, n. 14. See App. 44-45, 75-93; n. 2, supra. Petitioner CBS responded with its standard offer of separate 5-minute segments, even though the Carter-Mondale Presidential Com- mittee sought 30 minutes of air time to present a comprehen- sive statement launching President Carter‘s re-election cam- paign. Moreover, the Committee‘s request was made almost two months before the intended date of broadcast, was flexible in that it could be satisfied with any prime time slot during a 4-day period, was accompanied by an offer to pay the nor- mal commercial rate, and was not preceded by other requests from President Carter for access. See App. 27-40; n. 1, supra. Although petitioners adverted to the disruption of regular programming and the potential equal time requests from rival candidates in their responses to the Carter-Mon- dale Presidential Committee‘s complaint, the Commission re- jected these claims as “speculative and unsubstantiated at best.” 74 F. C. C. 2d, at 674.
IV
Finally, petitioners assert that
“Th[e] role of the Government as an ‘overseer’ and ulti- mate arbiter and guardian of the public interest and the role of the licensee as a journalistic ‘free agent’ call for a delicate balancing of competing interests. The main- tenance of this balance for more than 40 years has called on both the regulators and the licensees to walk a ‘tight- rope’ to preserve the First Amendment values written
into the Radio Act and its successor, the Communications Act.”
Petitioners argue that the Commission‘s interpretation of
“A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a . . . frequency to the exclusion of his fellow citizens. There is nothing in the First Amend- ment which prevents the Government from requiring a licensee to share his frequency with others . . . .” Red Lion Broadcasting Co. v. FCC, 395 U. S., at 389.
See also FCC v. National Citizens Comm. for Broadcasting, 436 U. S. 775, 799-800 (1978). Although the broadcasting industry is entitled under the First Amendment to exercise “the widest journalistic freedom consistent with its public [duties],” Columbia Broadcasting System, Inc. v. Democratic National Committee, supra, at 110, the Court has made clear that:
“It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount. It is the pur- pose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately pre- vail, rather than to countenance monopolization of that market . . . . It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here.” Red
Lion Broadcasting Co. v. FCC, supra, at 390 (citations omitted) (emphasis added).
The First Amendment interests of candidates and voters,
as well as broadcasters, are implicated by
Petitioners are correct that the Court has never approved
a general right of access to the media. See, e. g., FCC v.
Midwest Video Corp., 440 U. S. 689 (1979); Miami Herald
Publishing Co. v. Tornillo, 418 U. S. 241 (1974); Columbia
Broadcasting System, Inc. v. Democratic National Commit-
tee, supra. Nor do we do so today.
The judgment of the Court of Appeals is
Affirmed.
JUSTICE WHITE, with whom JUSTICE REHNQUIST and JUSTICE STEVENS join, dissenting.
The Court‘s opinion is disarmingly simple and seemingly straightforward: in 1972, Congress created a right of reason- able access for candidates for federal office; the Federal Com- munications Commission, charged with enforcing the statute, has defined that right; as long as the agency‘s action is within the zone of reasonableness, it should be accepted even though a court would have preferred a different course. This ap- proach, however, conceals the fundamental issue in these cases, which is whether Congress intended not only to create a right of reasonable access but also to negate the longstanding statutory policy of deferring to editorial judgments that are not destructive of the goals of the Act. In these cases such a policy would require acceptance of network or station de- cisions on access as long as they are within the range of reason- ableness, even if the Commission would have preferred differ- ent responses by the networks. It is demonstrable that Congress did not intend to set aside this traditional policy, and the Commission seriously misconstrued the statute when it assumed that it had been given authority to insist on its own views as to reasonable access even though this entailed rejection of media judgments representing different but never- theless reasonable reactions to access requests. As this litiga-
1. The Commission seemed to approach this case as though Congress were legislating on a clean slate, without regard for other provisions of the Act and the manner in which those provisions had been construed and applied to avoid undue intrusions upon the editorial judgment of broadcasters and without regard for the longstanding statutory policies about access, including the recognized duty imposed on broadcasters to serve the public interest by keeping the citizenry reasonably informed about political candidates.
The history of the Federal Government‘s regulation of the broadcast media has been recounted by this Court on several occasions. See Columbia Broadcasting System, Inc. v. Dem- ocratic National Committee, 412 U. S. 94, 103-110 (1973); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 375-386 (1969). That history evinces Congress’ efforts to deal with the inevitable tension between the need to allocate scarce fre- quencies and the importance of giving licensees broad discre- tion in exercising editorial judgment in the use of those fre- quencies. These efforts have led to the creation of a general requirement that broadcast licensees operate in the public in- terest but that they be given considerable leeway in the ful- fillment of that duty. As the Court stated in Columbia
The parties agree that prior to the adoption of
Broadcasters, however, had certain statutory obligations
with respect to political broadcasting: As the Commission has
explained, it had “recognized political broadcasting as one of
the fourteen basic elements necessary to meet the public in-
terest, needs and desires of the community.” Report and
Order: Commission Policy in Enforcing Section 312 (a) (7)
of the Communications Act, 68 F. C. C. 2d 1079, 1087-1088
(1978). Prior to the enactment of
“No legally qualified candidate had, at that time, a specific right of access to a broadcasting station. How- ever, stations were required to make reasonable, good- faith judgments about the importance and interests of particular races. Based upon those judgments, licensees were to ‘determine how much time should be made avail- able for candidates in each race on either a paid or un- paid basis.’ There was no requirement that such time be made available for specific ‘uses’ of a broadcasting station to which Section 315 ‘equal opportunities’ would be applicable.” 68 F. C. C. 2d, at 1088.
The Communications Act had thus long been construed to
impose upon the broadcasters a duty to satisfy the public need
for information about political campaigns. As this Court
observed in Farmers Educational & Cooperative Union v.
WDAY, Inc., 360 U. S. 525, 534 (1959), a broadcaster policy
of “denying all candidates use of stations . . . would . . .
effectively withdraw political discussion from the air,” and
such result would be quite contrary to congressional intent.
Furthermore,
It is therefore as clear as can be that the regulation of the
broadcast media has been and is marked by a clearly defined
“legislative desire to preserve values of private journalism.”
Columbia Broadcasting System, Inc. v. Democratic National
Committee, supra, at 109. The corollary legislative policy
has been not to recognize or attempt to require individual
rights of access to the broadcast media. These policies have
been so clear and are so obviously grounded in constitutional
considerations that in the absence of unequivocal legislative
intent to the contrary, it should not be assumed that
2. The legislative history, most of which the Commission ignored, shows that Congress was well aware of the statutory and regulatory background recounted above. It also shows that Congress had no intention of working the radical change in the roles of the broadcaster and the Commission that the Commission now insists is consistent with the statutory mandate.
The initial effort to incorporate the “reasonable access” concept into the Communications Act arose in 1970 as part of a floor amendment to S. 3637, a bill designed to repeal the equal time provisions of the Act with respect to Presidential and Vice Presidential elections and to require the sale of broadcast time to be made at the “lowest unit charge” avail- able to commercial advertisers. S. 3637, 91st Cong., 2d Sess. (1970). The amendment provided that “consistent with the other needs of the community broadcast licensees shall make
A second effort, this time by Senator Scott, to codify a “reasonable access” provision arose in the next session of Congress. That provision would have directed the Commis- sion to promulgate regulations that would “insure that all licensees make available to legally qualified candidates for public office reasonable amounts of time for use of broadcast- ing stations.” S. 956, 92d Cong., 2d Sess., § 302 (c) (1971). The then Chairman of the Commission testified that he un- derstood this proposal to codify the existing obligation of broadcasters to present political broadcasts under the public interest standard. Federal Election Campaign Act of 1971: Hearings on S. 1, S. 382, and S. 956 before the Subcommittee on Communications of the Senate Committee on Commerce, 92d Cong., 1st Sess., 189 (1971). This proposal also was not enacted.
The third effort to codify a reasonable access standard met
with success in the form of
“[t]he duty of broadcast licensees generally to permit the use of their facilities by legally qualified candidates for these public offices is inherent in the requirement that licensees serve the needs and interests of the [communi- ties] of license.” Id., at 34.
The legislative history thus reveals that Congress sought
to codify what it conceived to be the pre-existing duty of the
broadcasters to serve the public interest by presenting polit-
ical broadcasts. It also negates any suggestion that Congress
believed it was creating the extensive, inflexible duty to pro-
vide access that the Commission has now fastened upon the
broadcasters. This is not to say that
The Commission almost totally ignored the legislative his-
tory as a possible limitation on the reach of the broadcasters’
duty to provide reasonable access or upon the scope of its
oversight responsibilities. The Commission did note that
one of the purposes of the 1971 Act had been described as
affording candidates a greater access to the broadcast media.
But none of these statements indicated that this was the pur-
pose of
The Commission also noted, and the Court now heavily
relies on, the so-called conforming amendment to
In any event, the Court relies on the conforming amend-
ment for no more than an affirmative indication that Con-
gress intended to give individual candidates a right of reason-
able access, a right that did not exist prior to the enactment
of
3. The Court relies, as it must, on the authority of the Commission to interpret and apply the statute and on the deference that courts should accord to agency views with re- spect to the legislation it is charged with enforcing. As the Court has said, however, “[t]he amount of deference due an administrative agency‘s interpretation of a statute . . . ‘will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.‘” St. Martin Evangel- ical Lutheran Church v. South Dakota, 451 U. S. 772, 783, n. 13 (1981), quoting Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944). I find the Commission‘s current radical version not only quite inconsistent with its prior views but also sin- gularly unpersuasive.
As for its past views, the Commission‘s policy statement issued in 1972, shortly after the enactment of the Federal Election Campaign Act, expressed the view that the section
“3. Q. How is a licensee to comply with the requirement of
section 312 (a) (7) that he give reasonable access to his station to, or permit the purchase of reasonable amounts of time by, candidates for Federal elective office?“A. Each licensee, under the provisions of
sections 307 and309 of the Communications Act, is required to serve the public interest, convenience, or necessity. In its Report and Statement of Policy Re: Commission En Banc Programming Inquiry (1960), the Commission stated that political broadcasts constitute one of the major elements in meeting that standard. (See Farmers Educational and Cooperative Union of America, North Dakota Division v. WDAY, Inc., 360 U. S. 525 (1959), and Red Lion Broadcasting Co., Inc. v. FCC, 395 U. S. 367, 393-394 (1969).) The foregoing broad standard has been applied over the years to the overall programming of licensees. Newsection 312 (a) (7) adds to that broad standard specific language concerning reasonable access.“. . . The test of whether a licensee has met the requirement of the new section is one of reasonableness. The Commission will not substitute its judgment for that of the licensee, but, rather, it will determine in any case that may arise whether the licensee can be said to have acted reasonably and in good faith in fulfilling his obligations under this section.
. . .
“8. Q. Some stations have in the past had the policy
of not selling short political spot announcements (e. g., 10 seconds, 1 minute) on the ground that they did not contribute to an informed electorate. In light of the enactment of section 312 (a) (7) , may stations have such policies, or must they sell reasonable numbers of short spots to legally qualified candidates for Federal office if requested?“A. We have, prior to the enactment of
section 312 (a) (7) , when stations were (under the provisions ofsection 315 ) not required to allow use of their facilities by particular candidates for public office, ruled that licensees may have such policies. In so ruling, we have cautioned that licensees have the public interest consideration of making their facilities available to candidates, but have left to the good-faith judgment of the licensee the determination of how the facilities were to be used to serve the public interest. As complaints arose, we looked to the reasonableness of that judgment in a particular fact pattern. (31 F. C. C. 2d 782) (1971)).Section 312 (a) (7) now imposes on the overall obligation to operate in the public interest the additional specific requirement that reasonable access and purchase of reasonable amounts of time be afforded candidates for Federal office. We shall, under this new section, apply the same test of reasonableness of the judgment of the licensee.” Use of Broadcast and Cablecast Facilities by Candidates for Public Office, 34 F. C. C. 2d 510, 536-538 (emphasis supplied).
There was no suggestion in 1972 that the “needs” of the requesting candidate shall be paramount. Indeed, the Commission embraced its prior practice. Discretion was thought to remain with the broadcaster, not to be placed in the hands of the candidates or subjected to close and exacting oversight by the Commission. Clearly, the Commission‘s contemporaneous construction of
“Since the passage of
Section 312 (a) (7) as part of the Federal Election Campaign Act of 1971, the Commission‘s policy has generally been to defer to the reasonable, good faith judgment of licensees as to what constitutes ‘reasonable access’ under all the circumstances present in a particular case. The Commission desired, through its inquiry into this area, to learn whether that policy was proving manageable and equitable for candidates and licensees or whether additional rules or guidelines would be advisable.” Id., at 1079-1080.
After a detailed examination of the question, the Commission concluded:
“We continue to believe that the best method for achieving a balance between the desires of candidates for air time and the commitments of licensees to the broadcast of other types of programming is to rely on the reasonable, good faith discretion of individual licensees. We are convinced that there are no formalized rules which would encompass all the various circumstances possible during an election campaign.” Id., at 1089.
The Commission went on to suggest some very broad guidelines it considered essential in effectuating the intent of Congress under
In terms of the degree to which broadcaster editorial judgments should be subject to review and reversal by the Commission—the most important issue in this litigation—it is evident that the Commission has been quite inconsistent. Its present radical interpretation of
4. Equally, if not more fundamental, the Commission‘s opinions in this case are singularly unpersuasive. They contain a plethora of admonitions to the broadcast industry, some quite vague and others very specific but often inconsistent. Altogether, in operation and effect, they represent major departures from prior practice, from prior decisions, including those of this Court, and from congressionally recognized policies underlying the Federal Communications Act. As I have indicated, we should not endorse them without much clearer congressional direction than is apparent in the actions leading to the adoption of
4a. The Commission stated in a footnote that it should not differ with broadcaster decisions with respect to a candidate‘s access unless “‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,‘” an approach reflecting its traditional stance vis-à-vis the broadcasters. 74 F. C. C. 2d, at 642, n. 16. The Commission had already determined, however, that because
The Commission first confounds itself by announcing that the duty to provide access attaches when the campaign begins and that this threshold issue was to be “based on [an] independent evaluation of the status of the campaign taking into account the position of the candidate and the networks as well as other factors” 74 F. C. C. 2d, at 665. This effectively withdrew the issue of timing from the area of broadcaster judgment and transformed it into a question of law to be determined by the Commission de novo. It was also a major shift in the agency‘s position, for its Broadcast Bureau just two years before had ruled that the assessment of when a campaign is sufficiently underway to warrant the provision of access was to be left to broadcaster discretion: “A licensee‘s discretion in providing coverage of elections extends not only to the type and amount of time to be made available to candi
4b. The Commission ruled that in responding to its obligation to provide reasonable time, a broadcaster should place particular emphasis on the candidates’ needs, weigh each request in its own specific context on a particularized basis, and tailor its response to the individual candidate. This approach expressly rejects the thesis of
Of course, the individualized-need approach requires a broadcaster to make an assessment with respect to each request for time, and each of these countless assessments will be subject to review by the Commission. If the degree of oversight to be exercised by the Commission is to be measured by its work in these cases, there will be very little deference paid to the judgment and discretion of the broadcaster. The demands of the candidate will be paramount. As Commissioner Lee said in this litigation: “I have listened carefully to my colleagues explain how this decision leaves broadcast discretion with the networks. However, the decision doesn‘t have this effect. By the time the majority finishes its analysis of the networks’ reasons for not giving time, the networks do not have any choice other than to give the requested time. No other weighing of factors is reasonable in the view of the majority.” 74 F. C. C. 2d, at 681 (footnote omitted).
4c. Indicative also of the stringent degree of oversight that the Commission now intends to exercise is the manner in which it dealt with the networks’ suggestions that in responding to the request for time involved here, they were entitled to take into account the fact that a total of 122 persons had filed notices of candidacy for the Presidency with the Federal Election Commission. The Commission conceded that this was a proper concern and that Republican candidates might have to be treated equally with Democrats. The Commission, however, in its political wisdom, concluded that it was “unlikely” that more than a tiny percentage of all candidates would request time, the net effect being that the networks’ anticipations based on their professional experience were rejected. As petitioner CBS submits in its brief: “Broadcasters are not permitted to consider the likelihood of multiple future requests by similarly situated candidates un
4d. The Court tells us: “If broadcasters take the appropriate factors into account and act reasonably and in good faith, their decisions will be entitled to deference even if the Commission‘s analysis would have differed in the first instance.” Ante, at 387. But this language can be taken with a grain of salt, since the Commission, the Court of Appeals, and the majority give the networks no deference whatsoever. This is so because the “appropriate factors” are designed to eviscerate broadcaster discretion. The abrupt departure from accepted norms and the truly remarkable extent to which the Commission will seek to control the programming of political candidates in the future is best demonstrated by its rejection, as being unreasonable, of the submissions filed by the networks in response to the complaints, these submissions being summarized in the networks’ briefs as follows:
CBS:
“On October 11, 1979, Gerald M. Rafshoon, President Carter‘s media adviser, asked CBS to offer the Carter/Mondale Presidential Committee, Inc. (the ‘Carter Committee‘) a thirty-minute paid program on the CBS Television Network between 8:00 p.m. and 10:30 p.m. EST during the period December 4 to 7, 1979. The program, which was to be run following President Carter‘s anticipated announcement of his candidacy for reelection on
December 4, was described as ‘a documentary outlining the President‘s record and that of his administration.’ J. A. 39. CBS declined to offer a half-hour period that early in the campaign, but did offer two five-minute periods, one in the prime evening hours and one in the daytime hours, as it had to two other presidential candidates. J. A. 44-45. “On October 29, 1979, the Carter Committee filed a complaint with the Commission alleging that CBS, ABC and NBC had violated
Section 312 (a) (7) . In its response to the complaint and later pleadings, CBS asserted that its decision had been reasonable. CBS stated that it had traditionally sold half-hour periods during later campaign periods and that it intended to do so in the 1980 campaign. J. A. 80. It emphasized that its sales policies were designed to assure evenhanded treatment of candidates. J. A. 170-173. CBS pointed out that the Carter Committee request had been made even before the President had announced his candidacy and more than a year before the general election. It also pointed out that campaigns for the presidential nominations consisted not of one national contest, but of a series of state delegate contests extending over a long period of time; that the first of these contests was more than four months away; and that it was not reasonable to expect networks to sell half-hour periods nationally at such an early date. Moreover, CBS noted that there were a large number of actual and potential candidates for the Presidency; that two candidates for the Republican nomination had already requested half-hour periods; and that a substantial disruption of regular programming would occur if multiple requests were received and granted. J. A. 78-84. CBS further pointed out that an incumbent President has unparalleled opportunities to present his views to the public by means of the broadcast media. J. A. 170–71.”
Brief for Petitioner in No. 80-207, pp. 4-5 (footnotes omitted).
NBC:
“NBC responded by letter of October 23, 1979 declining the request to purchase time (JA 42). In its letter NBC noted that it had carefully evaluated the request, but concluded that the earliness of the requested broadcast dates (eight months before the Democratic National Convention and 11 months before the national election), the multiplicity of federal candidates at that stage of the campaign (12 announced candidates had held national elective office or been Governor of a state), and NBC‘s obligation under
Section 315 (a) of the Communications Act to provide equal half-hour time periods to all candidates requesting it should NBC honor the President‘s request, were all factors in its decision. NBC also noted that since the nomination process was focused at that time on political activities in individual states, such as the Iowa Caucus, the Committee might wish to contact individual local stations in those states.” Brief for Petitioner in No. 80-214, pp. 3-4.ABC:
“In a letter dated October 23, 1979, ABC advised Mr. Rafshoon that it could not comply with the Committee‘s request for time on one of the early December dates, but that it expected to make time available early in 1980. J. A. 41. . . .
“In response, ABC explained the factors which had led it to conclude that political time sales could reasonably commence in early January, 1980—instead of on the specific dates requested. Thus, the first of 36 Presidential primaries was, at that time, nearly four months away and the Democratic National Convention was more than
eight months away. J. A. 54-55. ABC also noted that the potential for program schedule disruption would be considerable if the Committee were sold time in early December, as multiple candidates would likely assert equal opportunities rights under Section 315 (a) of the Communications Act. J. A. 56. In this regard, ABC observed that at least nine Republicans had already declared their candidacy and that two Democratic leaders and a tenth prominent Republican were expected to announce within a short period of time. Finally, ABC emphasized that its continuing news coverage ensured that ‘the mixture of issues, developments (including candidate announcements) and personalities that dominate this early stage of the campaign are brought to the public‘s attention.’ J. A. 57.” Brief for Petitioner in No. 80-213, pp. 6-7.
None of these justifications is patently unreasonable. They become so only because of the Commission‘s conclusion, adopted by the majority, that the reasonableness of access is to be considered from the individual candidate‘s perspective, including that candidate‘s particular “needs.” While both the Court and the Commission describe other factors considered relevant such as the number of candidates and disruption in programming, the overarching focus is directed to the perceived needs of the individual candidate. This highly skewed approach is required because, as the Court sees it, the networks “seek the unilateral right to determine in advance how much time to afford all candidates.” Ante, at 389. But such a right, reasonably applied, would seem to fall squarely within the traditionally recognized discretion of the broadcaster. Instead of adhering to this traditional approach, the Court has laid the foundation for the unilateral right of candidates to demand and receive any “reasonable” amount of time a candidate determines to be necessary to execute a particular campaign strategy. The concomitant Commission in
“In addition, the document adopted by the majority today goes far beyond the proper limits of Commission responsibility in political broadcasting matters. In detail (see pages 12-13, paragraphs 13-35) it substitutes the Commission‘s judgment for the broadcaster‘s own good faith interpretation of candidate requests and his response thereto. Such governmental intrusion is unwarranted, is illegal and, I fear, will have far-reaching consequences that will come back to haunt the Commission and the public again and again.” 74 F. C. C. 2d, at 682.
JUSTICE STEVENS, dissenting.
In my judgment, the question whether a broadcast licensee has violated
In sum, I find JUSTICE WHITE‘S analysis of the issue compelling. I accordingly join his opinion.
Notes
“On behalf of the Carter/Mondale Presidential Committee, Inc., I am requesting availabilities for a thirty (30) minute program on [ABC, CBS, or NBC] between 8:00 p. m. and 10:30 p. m. E. S. T. on December 4, December 5, December 6, or December 7, 1979. This program, to be run in conjunction with an announcement concerning his candidacy by President Carter for the Democratic nomination for President, consists of a documentary outlining the President‘s record and that of his administration. At the time this program is aired, it may be assumed that President Carter will be a legally qualified candidate under the Communications Act of 1934, as amended, and that the President would appear on the program.
“As you know, the first official contest to select delegates to the Democratic National Convention occurs January 21, 1980, in Iowa, which is 47 days after December 7, 1979, our last requested date for availabilities.
“Unlike all previous Presidential election years, the news media has chosen to focus enormous attention on the Florida Caucus (October 13, 1979) and Convention (November 16–18, 1979) as well as other aspects of the 1980 campaign. As illustration, I have noted that in the six-week period from September 1 through October 9, 1979, ABC devoted 51 minutes, 22 seconds to the 1980 campaign; CBS devoted 51 minutes, 17 seconds to this subject; and NBC devoted 70 minutes. Therefore, our request for the above time seems eminently appropriate in view of the escalating political climate already generated by both print and broadcast media.
“I will expect to hear from one of your sales representatives within the next week regarding a selection of times in order that we may choose a mutually agreeable date.” App. 38–40. The bill as enacted did not include the proposed repeal of the equal time provisions with respect to Presidential and Vice Presidential elec- tions. 86 Stat. 3. In addition, the expenditure limitations of the Federal Election Campaign Act of 1971 have been repealed. 88 Stat. 1278.
“Because of the large number of present and potential candidates for the Republican and Democratic presidential nominations, we are at this time unable to accede to your request to purchase a half-hour program. We note that three Democrats and eleven Republicans have already announced, or may reasonably be expected shortly to announce, their presidential candidacies; indeed two candidates for the Republican presidential nomination have already requested to purchase half-hour programs on the CBS Television Network, and their requests have been declined on the same basis as indicated below.
“In light of the above circumstances, were we to provide the half-hour program you seek, accommodating potential requests for equal treatment from other candidates for presidential nomination would involve massive disruptions of the regular entertainment and information schedule of the CBS Television Network. Accordingly, we must respectfully reject your request.
“We are, however, prepared to make one 5-minute segment in prime time and one 5-minute daytime segment available for purchase by your committee. We note that this is the same offer made to the Republican candidates referred to above in response to their requests to purchase half-hour time periods.
“While we are unable to make available time on the dates you have specified, we are able to offer for your purchase a 5-minute period on December 8 between approximately 10:55 and 11:00 PM. We will also provide a specific 5-minute daytime availability for your purchase on request.” Id., at 44–45. One of the major purposes of the Federal Election Campaign Act was to shorten the length of campaigns, thereby reducing campaign costs. See S. Rep. No. 92-96, pp. 20-21, 28 (1971). Television advertising was described as “unquestionably the most used media in political campaigns, and it has been the most significant contributor to the spiraling cost of these campaigns.” Id., at 30. The majority‘s interpretation of
“[T]he ABC Television Network has not reached a decision as to when it will start selling political time for the 1980 Presidential campaign, and, accordingly, we are not in a position to comply with your request. As I mentioned on the telephone, I believe that later this year a decision will be made to make political time for the Presidential campaign available on ABC-TV early next year.” Id., at 41. Of a similar tenor is the Court of Appeals’ observation that “[t]he interference with editorial discretion” created by the rigid scheme of regulatory oversight it was endorsing “seems no more or less” than had existed under the broad public interest standard. 202 U. S. App. D. C. 369, 391, n. 102, 629 F. 2d 1, 23, n. 102 (1980).
“We have evaluated your request carefully. Based upon our experience with past campaigns, we believe it is too early in the political season for nationwide broadcast time to be made available for paid political purposes. In addition, we believe that honoring your request at this early stage of the Presidential campaign would require NBC to honor similar requests from a number of other Presidential aspirants. The impact of such an undertaking at this time is, of course, a significant factor in our decision.
“Insofar as the nomination process is now focused on political activities in individual states like Iowa, you may wish to contact stations serving those particular states.
“Please be assured that NBC News will continue to cover important and newsworthy aspects of President Carter‘s political activities.” Id., at 42–43. The statute permits revocation upon “willful or repeated” refusal to afford reasonable access. I think this language indicates that the Commission would intervene in only the most egregious of circumstances—such as an outright refusal to afford any time regardless of the circumstances. Consistent with this view, Senator Scott described